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In legal limbo?
Jose Padilla is a bad man. There seems no mistaking that if even half of what the government says he was plotting to do is true. And most of what he is accused of came from his own admission, including the parts about blowing up apartment buildings and making dirty bombs.
But Padilla also is a U.S. citizen arrested on U.S. soil and, therefore, ought to be treated much like other Americans accused of criminal conspiracy. That means he should be afforded due process even while the Supreme Court decides if it is constitutional to hold him indefinitely, without charges, in semi-isolation as an enemy combatant.
The Justice Department, in an unusual exercise the other day, released what it said were the fruits of months of interrogation in which the former Chicago gang member had cooperated.
The information revealed Padilla allegedly had extensive contacts with al Qaeda, trained in Afghanistan and was part of an aborted conspiracy to blow up an apartment building in New York -- he couldn't get along with the person assigned to team with him, so the plan apparently was abandoned -- and later to set off a radiological "dirty" bomb in this country.
There seems little doubt Padilla and his accomplices were bent on evildoings of large proportions. Padilla has a record of bad behavior dating to his earliest days. If the department is to be believed -- and there now appears no reason for doubt -- Padilla told interrogators one plot was to seal an apartment, leave the gas on and set off an explosion with a timer.
The dirty-bomb plot, the government said, came after his al Qaeda handlers rejected his offer to set off a nuclear device in the United States. They suggested a regular bomb salted with radiological material instead.
Department lawyers denied the unusual disclosure was aimed at influencing the court. But, as one legal expert noted, even the Supreme Court does not operate in a vacuum and is not utterly impervious to sensational headlines.
There also seemed to be an obvious attempt to influence public opinion, to justify President Bush's position that what occurred with Padilla has saved lives no matter how badly the Constitution was bruised in the process.
The court decision could have as far-reaching an impact on citizens' constitutional rights as any in recent years. The betting is the administration will lose, and it knows it. It should.
Even the most elementary understanding of our system would seem to mitigate in Padilla's favor no matter how guilty he seems. U.S. citizens detained for whatever crime on U.S. soil simply should not be held indefinitely without charges, nor should they be confined in semi-isolation with only supervised visits permitted with their attorneys now and then.
The attorney-client privilege of privacy has been voided here. If that means Padilla or those like him become less an asset for uncovering other plotters, it unfortunately is the price we pay for the liberties we enjoy.
Preserving our rights, after all, is what the war on terrorism is all about. If we step on those rights, we do the terrorists' jobs for them. If we don't observe those safeguards, we in effect become terrorists ourselves. The government either has the evidence to bring charges against this man or he should be freed and, if necessary, kept under constant surveillance -- baby-sat, as it were -- for the rest of his natural life. It won't be the first time for such measures.
Padilla is a wholly unsympathetic figure most of us would like to see rot in jail on bread and water forever, but only if convicted in a court of law. Those who believe he is an enemy combatant and, therefore, not subject to due process should stop and think for a moment that the same thing could happen to them once the constitutional barriers are down.
No one believes for a moment fighting terrorism is easy. Those who enter this country illegally and who truly are alien conspirators against the U.S. should not expect the same treatment as a citizen. Padilla fits that description with one difference. He is an American citizen -- and like it or not, we must protect that exception.
Dan K. Thomasson is former editor of the Scripps Howard News Service.
By Andrew P. Napolitano
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